Monday, April 25, 2005

Constitution in Exile

In the middle of a futuristic piece, Stuart Taylor has this pointed observation about those who believe there is such a thing as the "Constitution in Exile" movement:

This alleged agenda includes holding key New Deal laws unconstitutional, ending federal regulation of the economy in the name of states' rights, crippling state regulation in the name of property rights, and perhaps even imposing a Christian quasi-theocracy on the nation. Many liberals associate this (largely imaginary) agenda with what they call the conservative 'Constitution-in-exile movement' -- a group of not-very-powerful people whose leaders could fit into one phone booth and have little influence on any justice except (sometimes) Thomas.

8 Comments:

How about Scalia? Thomas and Scalia would surely be influenced by such people. (And let it be noted, I have a lot of respect for Scalia: he's probably the most intelligent justice on the court. I still disagree with him on about 75% of his opinions on issues I care about.)

And who says they don't exist? They're basically the so-called "originalists." (Return, thus, to Scalia.) They DO want to dump a bunch of legislation on commerce clause grounds, witness U.S. v. Lopez. They DO want to dump a whole bunch of establishment clause jurisprudence. Witness the repeated attacks on the Lemon test by, among others, good old Scalia.

Goodness, isn't Lemon dead yet? Hasn't O'Connor killed with a thousand different tests - is she part of the exile movement as well?

I think the article gives way too much credence the very *existence* of such a movement. It's as if people think there are a bunch of Restorationist Bourbons out there plotting to restructure everything we know. Take a closer look and you get...nothing. Nada. Zippo. What you have are series of disagreements over how to interpret the Constitution, disagreements that haven't gone away because the Court has ruled this way or that. It's almost like we have a free, pluralistic society or something.

Paul, Scalia may support these views in the abstract, but unlike Thomas, he's no revolutionary. He's not willing to overturn longstanding precedent willy nilly. He hasn't signed on to Thomas's many, "I think we should overturn this precedent, but the parties haven't challenged it on those grounds" opinions.

As for "want to dump a bunch of legislation on commerce clause grounds, witness U.S. v. Lopez," that's like saying, "There are a lot of states splitting up, witness Virginia and West Virginia." U.S. v. Lopez is a case. One case. It was a challenge to an extremely egregious law, it was decided on extremely narrow grounds, and it hasn't been used as anything resembling a significant precedent. Now, if Raich turns out the way federalists want, then you might have something to talk about.

They DO want to dump a whole bunch of establishment clause jurisprudence. Witness the repeated attacks on the Lemon test by, among others, good old Scalia.

As gd said, Lemon is a corpse. Scalia wants to bury it because it, and the other establishment clause jurisprudence, is incoherent. Was it Scalia who pointed out that under established precedent, private religious schools could receive books, but not maps, leaving him to wonder about books with maps in them?

Actually, I believe that was Moynihan who originally made that excellent observation.

Anyway, David is right: One relatively ineffective case tinkering at the margins of the Commerce Clause does not a revolution make. And the Lemon test is indeed incoherent -- not just Scalia, but a majority of the Court has at one time or another signed onto an opinion abandoning Lemon. (Hence Scalia's famous remark that Lemon was like a ghoul that kept rising from the dead.)

But the point, I think, is that there is a lot of reversing that they want to do.

Lemon, for all the pencils that Scalia thinks it's been stabbed by, is still good law. That would not be the case were Scalia and Thomas to pick up some more votes. And just to prove it's not just Scalia and Thomas, read Rehnquist's dissent in Wallace v. Jaffree, 472 U.S. 38 (1985). I quote:

As its history abundantly shows, however, nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means.

The Court strikes down the Alabama statute because the State wished to "characterize prayer as a favored practice." Ante, at 2492. It would come as much of a shock to those who drafted the Bill of Rights as it will to a large number of thoughtful Americans today to learn that the Constitution, as construed by the majority, prohibits the Alabama Legislature from "endorsing" prayer.

Regardless of what you think of the merits of his position, you have to acknowledge that it would turn establishment clause jurisprudence for the last few decades on its head if he'd secured a majority. The strict neutrality between religion and nonreligion is exactly what the establishment clause has been repeatedly held to require, and Rehnquist wants to dump it.

Roe, for all the criticism, is still good law. If there's any case that the "constitution in exile" movement would remove if it existed, it's that.

Then we get into the gradual wearing-down of various doctrines that's been happening since the Rehnquist court began and can only increase with more "originalists." For example, the various tests for when private action becomes state action reached their high point in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Since then, Rehnquist has been leading a steady backpedal, and Burton is all but overruled. (If you want, I'll dig up cites when I get back to the office tomorrow.)

As for Lopez, the fact remains that it's a landmark case, that it completely uprooted the expectations of Congress and of the populace as regards the scope of the commerce clause.

Well, the whole point of Rosen and others is that the supposed "Constitution in Exile" movement wants to overturn the entire New Deal and the modern administrative state (not Roe or certain Establishment Clause cases). It doesn't support that argument to point out that many conservatives are unhappy with Roe or Establishment Clause doctrine.

Well, to the extent that my fellow leftwingers are claiming that the "constitution in exile" crowd want to repeal the entire administrative state, I think they're nuts and I repudiate them. I don't think there's a movement afoot to make the Department of the Interior or the SSA unconstitutional. That's nuts.

On the other hand, I think there IS a constitution-in-exile movement centered around the establishment clause, as well as Roe and other sorts of decisions that tend to irk the Christian right. (Maybe it should just be the establishment clause in exile?) Scalia and his fellow "originalists" make no bones about their disbelief in the "wall of separation" concept and their conviction that the U.S. is a christian nation, as Justice Brewer notoriously said. (The Brewer in exile movement?)

Other than that, well, for "crippling state regulation in the name of property rights" I give you the "regulatory taking."

The scope of Lopez remains to be seen. I don't think the exiles will undo the new deal with it, but they're bound to undo more social legislation than just the gun-free school zones act.